MDNews - Long Island

IN RECENT MONTHS, there have been well-publicized claims of sexual harass- ment involving men in powerful and/ or prominent positions, such as Matt Lauer, Senator A l Fra n ken a nd Bi l l O'Reilly, among others. In many of these reported cases, the alleged harasser was removed from his position. In response, some employers might think it is wise to implement "zero tolerance" policies in which oªenders are terminated imme- diately from employment for any form of sexua l harassment. However, such zero-tolerance policy approaches can cause just as many problems as they seek to resolve. The problem is that there is a range of misconduct that may constitute sexual harassment as defined by current law. There is the most heinous and obvious type known as quid pro quo where the harasser uses the promise of a benefit or detriment to obtain sexual favors. This type of "caveman" sexual harassment style, of course, should not be condoned, and it is usually legitimate grounds for immediate termination, i.e., zero toler- ance. On the other hand, there is a range of other misconduct that creates gray areas. These situations arise from alleged harassers engaging in boorish or juvenile conduct that may be considered oªensive but may not justify termination under the current law. Employers often handle these gray areas diªerently. If t he employer ma i nt a i ns a zero tolera nce policy, the policy may lack the flexibility to appropriately tailor its remedial response to the oªensiveness of the misconduct. In other words, employ- ers are often better advised to make the punishment fit the crime. The courts and the Equal Employment Opportunity Commission (EEOC) have made it clear that proportionate remedial measures are legally permissible. Moreover, there are several problems with the zero tolerance approach that employers must be aware of. One issue with the zero-tolera nce approach arises where there is a union- ized workplace. Unionized employers, such as healthcare institutions, usually bargain over implementation of such a zero-tolerance policy because it aªects the terms and conditions of employment. A unionized workplace usually requires prog ressive discipline with multiple warnings before the employer may ter- minate employment. Indeed, the very nature of zero-tolerance runs counter to the nature of a unionized workplace with progressive discipline. A zero-tolerance approach could also lead to unintended consequences that actually result in continued harassment in the o¬ce or workplace. We occasionally observe that the zero-tolerance approach may discourage underreporting of oªen- sive conduct. This is because while the conduct may be oªensive and harass- ing, co-workers may not wish to see the perpetrator lose his or her job. Another unintended consequence could be that some employees — especia lly manag- ers or supervisors — in a zero-tolerance workplace may decide to avoid anyone who could misinterpret them as engaging in prohibited harassment. This could reduce social interaction, which could negatively impact career prospects and the workplace environment. As suggested above, while the zero- tolerance approach might have some surface appeal, the reality is that prevent- ing harassment in the workplace is usually better handled by a range of potential remedial options that fit the quality and quantity of the perpetrator's offense. Whatever policy the employer chooses to employ, it is often best that the parameters be set in an employment handbook. Our healthcare clients often ask us to draft their employment handbooks so they are tailored to their specific needs. G regory B . Reilly, Head of Practice G roup and Partner is a member of the Employment & Labor Practice Group at Martin Clearwater & Bell LLP. For more information visit mcblaw.com. ■ When the Problem is Sexual Harassment, Employing a Zero-Tolerance Policy May Not Be the Best Answer BY GREGORY B. REILLY 1 4❱❱❱❱❱ L E G A L E A S E

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